Jose Garcia-Cervantes v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 12 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LUIS GARCIA-CERVANTES, AKA No. 17-71203
Jose Luis Cervantes, AKA Jose Luis Garcia,
Agency No. A079-144-095
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 4, 2020**
Honolulu, Hawaii
Before: FARRIS, McKEOWN, and BADE, Circuit Judges.
Jose Luis Garcia-Cervantes (“Garcia-Cervantes”) petitions for review of the
Board of Immigration Appeals (“BIA”) order dismissing his appeal from an
Immigration Judge’s (“IJ”) decision denying his requests for asylum, withholding
of removal, cancellation of removal, and protection under the Convention Against
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Torture (“CAT”). We review the agency’s factual findings for substantial
evidence. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014).
Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petition for review.
1. An applicant must apply for asylum within one year of arriving in the
United States. 8 U.S.C. § 1158(a)(2)(B). A late application may be considered if
the asylum applicant establishes “either the existence of changed circumstances
which materially affect the applicant’s eligibility for asylum or extraordinary
circumstances relating to the delay in filing an application.” Id. at § 1158(a)(2)(D).
We have jurisdiction to review the agency’s timeliness determination because the
ruling was based on undisputed facts. See Ramadan v. Gonzales, 479 F.3d 646,
649-50 (9th Cir. 2007).
Garcia-Cervantes entered the United States in 2002 but did not seek asylum
until 2014. Garcia-Cervantes’s asylum claim rests on his fear that, if he returned to
Mexico, he would be killed by members of a family who, since 1977, have
intimidated and murdered several of his relatives to take possession of Garcia-
Cervantes’s family’s ranch. Members of that family shot Garcia-Cervantes in
1998. Garcia-Cervantes contends that his circumstances changed in 2015 when
one of his brothers who lives near the family’s ranch was shot. We do not make a
changed circumstances determination. Substantial evidence supports the BIA’s
determination that Garcia-Cervantes’s delay in applying for asylum was not
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reasonable because that incident was not a changed circumstance. Garcia-
Cervantes’s and his sister’s testimony about the motive and person responsible for
shooting their brother was speculative.
Garcia-Cervantes also asserts that extraordinary circumstances excuse his
untimely application because, during a prior removal proceeding, he was misled
about the need to apply for asylum. Garcia-Cervantes did not present this claim to
the BIA and therefore it is waived. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft,
358 F.3d 674, 678 (9th Cir. 2004). We therefore affirm the denial of Garcia-
Cervantes’s asylum application as untimely.
2. Substantial evidence supports the agency’s determination that Garcia-
Cervantes failed to establish that the harm he experienced or fear of future harm in
Mexico was or would be on account of a protected ground. See Ayala v. Holder,
640 F.3d 1095, 1097 (9th Cir. 2011) (per curiam) (even if membership in a
particular social group is established, an applicant must still show that “persecution
was or will be on account of his membership in such group”); Zetino v. Holder,
622 F.3d 1007, 1016 (9th Cir. 2010) (“An [applicant’s] desire to be free from
harassment by criminals motivated by theft or random violence by gang members
bears no nexus to a protected ground.”). Substantial evidence also supports the
agency’s determination that Garcia-Cervantes could safely and reasonably relocate
within Mexico. See 8 C.F.R. §§ 1208.16(b)(1)(i)(A) and (B), (b)(3). Thus, Garcia-
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Cervantes’s withholding of removal claim fails.
3. Substantial evidence supports the agency’s denial of CAT relief
because petitioner failed to show it is more likely than not that he would be tortured
by or with the consent or acquiescence of the government if returned to Mexico. See
Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); see also Andrade-Garcia v.
Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (“general ineffectiveness on the
government’s part to investigate and prevent crime [does] not suffice to show
acquiescence”).
4. This court “lack[s] jurisdiction to review the merits of [the agency’s]
discretionary decision to deny cancellation of removal,” Vilchez v. Holder, 682 F.3d
1195, 1198 (9th Cir. 2012) (citation omitted), because Garcia-Cervantes has not
alleged “a colorable legal or constitutional claim,” Vilchiz-Soto v. Holder, 688 F.3d
642, 644 (9th Cir. 2012). See 8 U.S.C. § 1252(a)(2)(D). The agency considered the
hardship factors “in their totality.” See Matter of Recinas, 23 I. & N. Dec. 467, 472
(B.I.A. 2002).
5. This court lacks jurisdiction to consider Garcia-Cervantes’s Due
Process claim based on the IJ’s alleged bias because Garcia-Cervantes did not
exhaust that claim and the BIA could have remedied the alleged error. See Tall v.
Mukasey, 517 F.3d 1115, 1120 (9th Cir. 2008).
PETITION FOR REVIEW DENIED.
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